Aviles-Rivera: NAS Updates are evidence subject to AMA evidentiary limits

Aviles-Rivera v. McDonough, 35 Vet.App. 268 (2022)

HELD: NAS updates that were created outside the AMA evidentiary window are evidence and cannot be deemed to be constructively in the record.

Summary: In April 2017, the Board remanded the Vietnam veteran’s appeal for service connection for hypertension for an examiner to consider the NAS Updates. The examiner provided an opinion in October 2017. In June 2018, the veteran opted into the AMA through the RAMP pilot program. In September 2018, VA issued a Higher Level Review decision. In November 2018, the NAS Update links hypertension to herbicide exposure. The veteran appealed to the Board - selecting the “Direct Review” option. In April 2019, the Board continued to deny service connection, without considering the NAS Update.

On appeal to the CAVC, the veteran argued that the Board improperly ignored the 2018 NAS Update and that the examiner’s opinion was inadequate because it was rendered without the benefit of that information. The CAVC rejected these arguments, finding that because the veteran opted into the AMA and chose the “Direct Review” docket at the Board, he “agreed” that the Board would not consider any evidence after the September 2018 decision.

The Court found that the 2017 Board remand to ”consider NAS Updates” did not require VA to delay the appeal while waiting for any future updates - and also held that the AMA evidentiary review limits do not violate the principles of fair process.

This case was appealed to the Federal Circuit on July 22, 2022.

McCarroll: DISABILITY RATING, HYPERTENSION

McCarroll v. McDonald, docket no. 14-2345 (en banc) (Nov. 7, 2016)

HELD: Because the diagnostic code for hypertension (38 C.F.R. § 4.104, DC 7101) specifically discusses the effects of medication, the Board was not required to consider whether a compensable rating would be warranted if the veteran was not medicated.

SUMMARY: Veteran Billy D. McCarroll appealed the Board’s denial of a compensable disability rating for his service-connected hypertension, arguing that the Board “failed to discount the ameliorative effects of his blood pressure medication.” Without his medication, he argued, his blood pressure would be at compensable levels. For support, Mr. McCarroll cited Jones v. Shinseki, 26 Vet.App. 56, 63 (2012), which held that the Board cannot deny a higher disability rating based on symptoms that are relieved by medication when the diagnostic code does not contemplate the effects of medication on the condition.

The Court held that Jones did not apply in this case because the diagnostic code for hypertension, DC 7101, expressly considers the effects of medication. DC 7101 provides for a 10% disability rating if (1) diastolic pressure is predominantly 100 or more OR (2) systolic pressure is predominantly 160 or more OR (3) “for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.” Although Mr. McCarroll did require medication for his hypertension, his medical records did not show a history of diastolic pressure at 100 or more or systolic pressure at 160 or more. Because of this, the Court further held that the Board did not err when it determined that Mr. McCarroll’s symptoms did not more nearly approximate the criteria for a 10% disability rating. The Court also rejected his argument that he was entitled to referral for extraschedular consideration because he did not raise that issue at the Board or the RO.

In a concurring opinion, two judges argued that Jones should be overturned as it is “predicated on a misunderstanding of the rating schedule.” These judges note that “although some diagnostic codes mention the fact of medication usage as a rating criterion, none require the Board to make any affirmative use of information about the ‘ameliorative effects’ of the medication.” They also note that the Jones holding “invites medical speculation in trying to guess what a veteran’s symptoms might be without the medication, or medical malpractice in the cessation of medication so that the veteran’s symptoms without medication might be recorded.”

In a dissenting opinion, two other judges found that DC 7101 provided three alternative paths to a 10% disability rating – and only one of those “contemplates the ameliorative effects of medication.” The dissenting judges would have held that Jones applies to this case and that the Board erred when it failed to consider the ameliorative effects of medication under the first two paths to a 10% rating under DC 7101.

FULL DECISION